The Opposition Division (OD) came to the conclusion that Claim 1 of the auxiliary request was novel over the A 54(3) document D8 because the skilled person had to make several selections in order to arrive at the claimed subject-matter. First the specified monomers had to be selected in a list; then the polymerisation had to be carried out in the presence of an emulsifier whereas the polymerisation in D8 is said to be preferably done without any surface-active compositions; thirdly one had to use the polymers as a dispersion mixture.
The Board of appeal does not follow this approach. It points out that D8 cites several relevant monomers and that it is stated that the process may be carried out in the presence of usual surface-active substances such as emulsifiers and/or protective colloids. The Board then continues:
As far as the use is concerned, D8 states: “Moreover, the polymers according to the invention are suitable for modifying the surface and interface properties. As a consequence of the surface-modifying effect the means according to the invention can be used for coatings, e.g. for polyolefins, for glass and glass fibres. Thanks to their surface-active effect they can also be used as protective colloids, e.g. for the stabilisation of metal colloids or in aqueous radical emulsion polimerisation.” [3.3.1]
In the present case the latter use as protective colloid in the aqueous radical emulsion polimerisation is relevant. It was undisputed in the oral proceedings before the Board that the word ‘they’ in this sentence refers to the “means according to the invention”. There was, however, no agreement as to what had to be understood by “means according to the invention”. The opponent held the view that this expression included polymer dispersions and the solid powders that can be obtained from them, whereas the patentee held the view that this expression was a synonym for the polymers mentioned at the beginning of the section and therefore referred to solid powders only. [3.3.2]
First of all it has to be noticed that the word ‘means’ is a relatively broad term in normal language usage and therefore should prima facie cover all the embodiments disclosed in D8. This impression is confirmed by the disclosure of D8 as a whole. The first paragraph of the description of D8 makes clear that D8 concerns a process for the production of aqueous copolymer dispersions by aqueous radical emulsion polimerisation. This process is particularly suitable for the production of aqueous polymer dispersions. Moreover the polymer dispersions that can be obtained with this process can be transformed into solid powders by a drying process according to the prior art. Thus it follows from the context (Zusammenhang) of D8 that the expression “means according to the invention” comprises both product forms, i.e. aqueous polymer dispersions and the solid powders obtainable from them. Therefore the use as protective colloid in aqueous radical emulsion polimerisation is disclosed both for the aqueous polymer dispersions and the solid powders. Of course this general disclosed use also concerns the specific embodiments of D8, and inter alia the polymer dispersions contained in examples 12 to 15. The Board considers that the total amount of information of D8 is novelty-destroying prior art. [3.3.3]
Here the novelty-destroying character does not result from a tessellated (mosaikartig) reading of the prior art. As soon as one comes to the conclusion that polymer dispersions fall under the expression “means according to the invention”, there is no need for a multiple selection in D8 in order to arrive at the subject-matter of claim 1. The use as protective colloid in aqueous radical emulsion polimerisation which is disclosed in D8 concerns all the polymer dispersions in D8. Therefore the argument of a novel “selection within D8” is unpersuasive.
To read the whole decision (in German), click here.
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